During Dave's final year at the university, he worked in the Internet technology section of the school's communication center. During this time, he became familiar with the security protocols used by the university. With his B.A in business administration, Dave happily set up a small corporation that sold widgets. Using his understanding of the university's information technology security system to bypass the university's security protocols, he managed to have the university pay the bill for the information technology that his company used by stealing computer resources.

Other students who remained at the university discovered Dave's scheme and notified police. Dave's widget business was not doing well, so Dave had to file bankruptcy at about the same time that the state filed an information charging him with felony theft of services.

An attorney was appointed to represent Dave at the preliminary hearing and the same attorney handled the felony trial at which Dave was convicted as charged. His attorney requested a jury trial during which a total of six jurors were seated to form the jury. They heard most of the case, but near the end of the trial, one of the jurors had to have emergency surgery and was excused by the judge. Since no alternate jurors were available at this point, the judge decided to allow the remaining five jurors to decide the case. As the judge noted, "Non-unanimous jury verdicts have been approved, so we will just have to go with five jurors. It will be almost like a non-unanimous jury verdict and it'll be all right." As it turned out, five jurors eventually voted to convict Dave of the charged offense.

Earlier, during the jury selection process, the prosecutor kept using peremptory challenges that had the effect of removing most members of Dave's race from the jury. Dave's attorney objected to the use of race as a standard for eliminating jurors, but the judge overruled Dave's attorney. Dave's attorney began eliminating members of the prospective jury based on a gender standard because he wanted more "geeky" types to hear the case.He was eliminating prospective jurors based on gender in a similar way to what the prosecutor had been doing with race.When the prosecutor objected to what Dave's attorney was doing with respect to removing jurors based on gender, the judge said, "Well, that should even things out."

At the conclusion of jury selection, Dave's attorney was not happy with the panel that had been selected, so after consulting with Dave, he requested that the judge hear the case without a jury. The judge refused because he noted that the prosecution had the right to a jury trial based on the guarantees under the federal constitution.

The judge ordered that the case proceed and the result was that the jury convicted Dave. The judge sentenced him to a year and a day in the state prison but did not order a fine or restitution. Following the conclusion of the bankruptcy proceedings, Dave did manage to scrape some money together and hired an appellate attorney to see what opportunities for legal relief might exist in the Court of Appeals.Dave explained as much of what happened as he could remember, and the appellate attorney read the trial transcript.

Question 1: What legal issues should Dave's appellate attorney identify? Use case law to bolster your argument.

Question 2: How should those issues be resolved?